The South Dakota Supreme Court is ordering a lower court to reconsider a portion of a case involving a crop duster dispute.
The case centers around trespassing laws and dead trees at a Spink County farm.
In 2014, David Olsen was leading a hunting party on his family’s 20-acre farm when herbicide spray rained down on them from above. This came from a crop duster trying to spray a neighboring field.
The company that makes the herbicide cautions against applying it near ponderosa pine trees, as it can damage or kill them.
Court documents say by 2015, all of the trees in the northern half of the Olsen Tree Stand on the property were dead. Trees in the southern half of the property were showing signs of death or damage.
The Olsen Estate sued North Central Farmers Elevator, which operated the crop duster, alleging the herbicide killed the trees. They also claimed the crop duster trespassed by unlawfully spraying the herbicide.
In 2018, North Central Farmers Elevator merged with another coop to form Agtegra Cooperative, which is the defendant named in the case. Agtegra asked a circuit court to throw out the lawsuit, arguing expert testimony should be required to show the herbicide killed the trees. Expert testimony is testimony from an someone with specialized knowledge in a given area to help courts understand complex issues within a case. The defense did not dispute they entered the property without the Olsen’s consent.
The court ruled in Agtegra’s favor, saying the Olsens needed expert testimony for the entirety of the case. The court granted Agtegra summary judgement, essentially throwing the case out.
The Olsens appealed.
In its ruling, the Supreme Court affirmed the decision that expert testimony is required to prove the herbicide was the actual cause of death to the trees.
However, the justices also ruled the lower court should not have thrown out the aspects of the case involving trespassing violations. They ordered the court to reconsider the trespassing portion of the case – but noted compensation for these claims would be limited to nominal damages.
Justices Janine Kern and Patricia Devaney issued a dissenting opinion, arguing the lower court should reconsider the entire case. Their opinion said that using summary judgement to throw out the case was "inappropriate because a reasonable jury could determine that the ForeFront HL did indeed kill the trees."
